From Kubai to Jomo and Moi: Interesting cases that the courts heard this year

The year 2014 has seen quite a number of court cases, some of which have already been concluded while others are awaiting resolution. But, while the courts have done all they could to clear the piling backlog, the year closes with many people still waiting for the slow wheels of justice to turn in their favour.

Probably fearing that this delayed justice would turn into denied justice, Chief Justice Willy Mutunga on December 17 2014 announced that he had promoted 115 magistrates to clear the backlog and ensure faster dispensation of justice.

There is a reason why the courts teem with activity nowadays; the Constitution gives every citizen a right to institute court action against any authority, person or organisation that intrudes upon his or her rights or freedoms.

Chapter Four on the Bill of Rights says that “every person has the right to institute court proceedings” if he or she feels his or her rights have been “denied, violated or infringed”, or are threatened.

The courts have also been obliged to entertain proceedings on the basis of informal documents and no fees may be charged for commencing such actions. It is under these privileges that a number of current cases have been filed, mostly related to the violation of human rights at family, business and community and government levels.

Here, a brief summary of the interesting cases in court this year, some of which are yet to be determined:

Mukuru Kwa Njenga residents claim being conned by N.G.O

Over 2,000 families living in Mukuru Kwa Njenga slums this year sued an NGO for allegedly duping them into buying a parcel of land worth over Sh1 billion in their quest to own a decent home in the city.

The residents want the court to compel Ms Jane Weru of Muungano Wa Wanavijiji Akiba Mashinani Organisation to cede ownership of the 23-acre parcel she acquired on their behalf.

The 2,221 members, registered under Mukuru Makao Bora Trust, accuse Ms Weru of declining their request to transfer the land she bought through her NGO. They allege that she purchased the land seven years ago on their behalf but has since refused to transfer the same to them, which she denies.

The slum residents say they trusted Ms Weru to purchase the land on their behalf from Milwhite Limited, a company in Embakasi, in 2010 for Sh81 million. The members contributed Sh45,500 each, but Ms Weru paid for the purchase price of the 23 acres using a mortgage facility.

 City stopped from spilling waste at Dandora dumpsite

 The High Court directed the Nairobi County Government to construct a high wall around the Dandora dumpsite to prevent spillage into surrounding areas.

According to a petition lodged by Embakasi North MP James Gakuya and his constituents, the actions by the county government violated their rights to proper heath.

The lawmaker said that statistics showed many children in the area were suffering from respiratory ailments, had high toxic blood lead levels, and suffered skin disorders and other diseases which could be directly attributed to the manner of disposal of waste at the site. Justice Isaac Lenaola adopted sanctions proposed by the National Environment Management Authority, saying that the measures will help prevent further encroachment and end the menace that has troubled Dandora residents for the last four decades.

The Dandora dumpsite, located eight kilometres from the Nairobi CBD on a 30-acre piece of land, literally spills into the households of nearly 1.3 million people living in nearby slums.

Governors TAKE ON MPs over laws stopping them from flying flags

The year also witnessed a supremacy battle between the National Assembly and the Council of Governors over who should fly the national flag, with a legislation passed by the MPs prohibiting county chiefs from the flying the symbol of power and stature. But the Council of Governors (COG) went to court, where it argued that the new law “was meant to undermine the authority of their office”.

COG said that the law goes against national values and devolution, stating that the national flag is not only a symbol of the national government, but that of the counties too.

According to the legislation, sponsored by Eldas MP Adan Keynan, Parliament amended the Traffic Act by inserting new sections that warned that a person shall not fly the national flag on any motor vehicle if such person was not the President, the Deputy President, the Chief Justice, the Speaker of the National Assembly and the Speaker of the Senate.

The Governors said that the legislation contravened the Constitution, and that the national flag was a symbol of the Republic of Kenya, just like the National Anthem, the Coat of Arms and the Public Seal.

“The national flag is not a symbol of the National Government, but of the Republic of Kenya, and is something we take pride in. Parliament, in passing that law, undermined devolution and the authority of the County Governor’s office.

The legislation should thereby be nullified,” the Governors demanded.

Kenyatta brother sues over Gatundu ‘State House’ LAND

Founding President Jomo Kenyatta loved his Gatundu home. He would retire there every day after work and occasionally hold important meetings in the compound.

But the sentiments held by the Kenyatta family over the home are not shared by some in the extended family. Mzee Kenyatta’s relative Peter Mungai Ngengi accuses the founding President of grabbing a three-and-a-half-acre piece of land belonging to the first President’s brother, which he claims is presently housing the Gatundu home of Mzee Jomo Kenyatta (left). Peter Mungai Ngengi (Wakameme) says his father’s land, located at Ichaweri area of Gatundu District, Kiambu County, was seized by the former president, and that, subsequently, Jomo Kenyatta and the Ministry of Lands caused it to be “merged into one big piece of land now known as Ngenda Kimuyu/982 to make a home… popularly known as Ikulu (State House)”.

Ngengi also accuses the Ministry of Lands of colluding with the first president to have the title of the three and a half acres revoked and later registered in the names of his wife Mama Ngina Kenyatta and son Uhuru Kenyatta. However, Mama Ngina dismisses Ngegi as one full of conjecture, subjective opinions and personal convictions which do not warrant the invoking of Section 80 of the Land Registration Act as read together with Article 40 of the Constitution.

Ongeri ANGERED BY Ombudsman’s GRAFT report

Kenya’s ambassador to UN-Habitat, Prof Sam Ongeri (above), sued the Ombudsman for authoring a report he says depicted him as the person behind a mega land grabbing scam in his Kisii backyard.

The former minister for Education said the report was “unlawfully published” and tainted his image, thereby putting his job as Kenya’s representative to the UN-Habitat in jeopardy. “My appointment on August 15, 2014 as Kenya’s Ambassador to the UN-Habitat stands to be challenged in court as a result of the adverse findings in the report,” he said.

The report, which Prof Ongeri wants expunged from public records, was made public last month by the Commission on Administrative Justice and is available online on the Ombudsman’s website.

But Prof Ongeri says it did not rely on material facts, and neither did its authors interview him. He also says the land in question is subject to proceedings of another court case pending determination.

He is accused alongside former Cabinet Minister Zachary Onyonka, Samson Nyambati Nyamweya (former Kisii Town Clerk), and James Gisemba Oriku (former mayor of Kisii Town). Prof Ongeri is accused of acquiring a plot within Kisii Market in 1982, while he was Minister of Local Government, but had not developed it “because of public resistance”.

 Cyrus Jirongo contests sale of property over Sh20 billion debt

The courts this year stopped the sale of a multi-billion-shilling investment belonging to politician Cyrus Jirongo (above) in Ruai. The property at the centre of the court battle was mortgaged to Kenya Deposit Insurance Corporation in order to secure the repayment of a Sh1 billion loan which rose to Sh20 billion.

The loan was advanced to Sololo Outlets Limited, a sister company to Offshore Trading Company, owned by the politician and his business partner Dr Davy Koech, the founder and former CEO of Kenya Medical Research Institute.

“By a purported notice dated August 12, 2013, the respondent (insurer) informed that upon expiry of 40 days, it will instruct a licensed auctioneer to sell the mortgaged property for recovery of Sh20 billion which was due as at March 21, 2013,” the former lawmaker said.

The property was then advertised for sale on November 13, 2014, but Lady Justice Farah Amin stopped the sale, pending hearing and determination of the suit.

The former lawmaker said that despite several verbal requests to the liquidation agent, the insurer has refused and declined to furnish them with a valuation report of the property.

ORTHODOX Church DENIES ‘dubious transfer of properties’

A fresh controversy also rocked the Orthodox Church after its leaders claimed church funds were being embezzled by the church board. The Very Reverend Father Silouanos Samuel Mwangi Gichanga sued  Archbishop Makarios Tillyrides, Pope Theodoros 11 Nikolaos Choreftakis and other church leaders over “questionable transfers of the church’s funds and assets” of Orthodox Towers Management Company Limited.

Father Gichanga said the “misdeeds” of the Orthodox leadership should be restrained in order to protect the church’s assets and the interests of their members.

He similarly accused the church’s leadership of moving huge sums of money and members’ properties.

However, the church refuted the claim, accusing the Father of filing a scandalous suit because he had been excommunicated from the church effective September 15, 2014. “In 2011, the memorandum and articles of the Orthodox Church were amended to vest all powers in the Pope. The plaintiff has perjured himself in claiming to be the financial controller of the church.

It is in the same powers that the Pope enforced his removal as member of the company,” the church said. According to the leaders, transfer of funds held by the church in Prime Bank was done in due regard of the law.

They said a board resolution sanctioned the decision in cognisance of the church’s responsibility of securing the funds and assets of its members.

 Government QUESTIONED FOR failure to stop RAPE OF GIRLS in schools

The Government was also put on the spot to explain why laws protecting the girl child from sexual assault in schools were not preventing the commission of the vice. According to a report by The Cradle, a children’s rights foundation, defilement cases appeared to be on the increase despite there being adequate measures to stop the trend, which, according to lawyer John Chigiti, had been on an upward drift since 2010.

“The fact is that the problem is persistent. There are laws protecting the girl child from rape in schools.

What other incentives can the TSC incorporate to eradicate defilement cases that seem to be on the increase?” Justice Mumbi Ngugi tasked TSC to clarify. The judge asked why the stringent measures put in place by the teachers’ body appeared not to be working.

“Is it that nothing is being done or that it is done wrongly?” she wondered. She also noted that TSC had issued several circulars and acted on cases reported to them, but, “despite all this legislation and circulars, the acts according to the data provided to me are on the rise. What is not working?

Is it the circulars, the punishment or the laws?” the judge asked. The organisation stated that the government should take requisite action to facilitate, promote and protect the rights of pupils while under their care in schools.

TSC lawyer Allan Sitima said the commission had distributed a circular — No 3 of 2010 — in April 2010 in which it sent out a stern warning governing relations between teachers and pupils, mainly of the opposite sex.

 Moi son IN COURT over associate’s properties

A company this year sued the son of retired President Daniel Moi for allegedly impounding its property. In the suit, Mr Philip Moi (right) is accused of confiscating Kenline’s seven cars, 12 motorbikes and over 200 cartons of cigarettes during the reign of his father.

Kenline was the sole distributor of cigarettes produced by Cut Tobacco Limited (owned by Moi) and is alleged that the action took place during the end of the reign of Moi in 2001.

Mrs Jacinta Wanjiku Kigo, the wife of Mr Wilson Ngugi Kigo, who was killed in mysterious circumstances on March 24. 2002 during the property tussle, said she wants justice to be served even after her husband’s death.

Philip was cleared of allegations that he was behind the killing of the businessman. Patrick Mundia Gitonga, who was then a salesman with Kenline, says in documents filed in court that after loading cigars into a waiting van, he and the companion left for Nanyuki to sell them, and that it was during this trip that they were informed by plainclothes policemen that the company’s other vehicles had been impounded.

He says that he called his boss, Mr Kigo, who confirmed the incident but asked them to proceed to Nanyuki, deliver the consignment and return the vehicle to the company premises. Kenline also wrote a letter to the former President asking him to persuade the son to release its properties in 2002. “Your excellency,” the letter read in part, “we abstained to seek legal redress in this case to avoid an eventual embarrassment to your family.

Kindly look into this matter and give us a fatherly advice and solution.”

 Samburu woman takes on embassy for using her portrait to market CULTURAL festival

A Samburu woman sued the German Embassy for using her portrait to seek donor support while marketing the largely publicised Lake Turkana Festival worldwide.

Ms Talaso Lepalat, a resident of Loiyangalani sub-location in Marsabit County, told the High Court in Nairobi that the German Consular used her photograph without her written consent, and that, as a result, her husband had physically assaulted her because, according to Samburu culture, before a woman can appear in public, she has to seek the consent of the head of the family, in this case the husband.

But the Consular argues that its staff enjoys diplomatic immunity and cannot, therefore, be charged in court.

 Kubai kin fight FOR multi-billion-shilling estate

 A family row pitting the wives and children of the late freedom fighter Fred Kubai against a woman they say was their househelp took another twist, with the kindred now demanding that the grant awarding her the multi-billion estate be nullified.

Kubai’s nephew Andrew Kamau Kubai, told the courts that the family had discovered that the documents used by Ms Christina Gakuhi Kiragu (below) were forged and unauthentic.

Among the documents are a certificate verifying the signatures of the late freedom hero’s contested Will. The family said that the High Court overlooked the initials and as a consequence awarded Ms Gakuhi the whole estate, leaving out the family without a single property belonging to their father.

The battle over Kubai’s property has dragged in court for over 18 years, and Mr Kamau said that in 1998, the court ruled that the estate be shared among the four wives, but later Ms Gakuhi introduced the contested Will assigning her the sole heir of Kubai’s estate.

An order by the court notifies: “Be it known that on the 19th day of December 2013, the last written Will of the estate of Fredrick Polwarth Kibuthu Kubai (decrees that) the administration of all the estate of the deceased… be granted to Ms Christina Gakuhi Kubai, the executor named in the said Will.”

Mr Kamau, in opposing this, says it a massive cover-up by those handling their late father’s estate. According to a report from the Directorate of Criminal Investigations, the second death certificate used by Ms Gakuhi to strengthen her grip on Kubai’s properties could not be fully confirmed as a genuine copy.

It says that there was no death register for the second death certificate and that the office of the DCIO requests for further investigations on how it was acquired. The report also says that they conducted investigations on the ID numbers presented for the Will, which were verified through the National Registration Bureau on March 11, 2014.

“The number did not exist in their data, the ID number on the Will also did not constitute a Kenyan Identity card’s numbers.” Ms Gakuhi contests the allegations.

The late freedom fighter died on June 1, 1996 at the age of 79, triggering a fierce battle over the ownership of his vast estate.

Government QUESTIONED FOR failure to stop RAPE OF GIRLS in schools

 The Government was also put on the spot to explain why laws protecting the girl child from sexual assault in schools were not preventing the commission of the vice.

According to a report by The Cradle, a children’s rights foundation, defilement cases appeared to be on the increase despite there being adequate measures to stop the trend, which, according to lawyer John Chigiti, had been on an upward drift since 2010. “The fact is that the problem is persistent. There are laws protecting the girl child from rape in schools.

What other incentives can the TSC incorporate to eradicate defilement cases that seem to be on the increase?” Justice Mumbi Ngugi tasked TSC to clarify. The judge asked why the stringent measures put in place by the teachers’ body appeared not to be working.

“Is it that nothing is being done or that it is done wrongly?” she wondered. She also noted that TSC had issued several circulars and acted on cases reported to them, but, “despite all this legislation and circulars, the acts according to the data provided to me are on the rise. What is not working? Is it the circulars, the punishment or the laws?” the judge asked.

The organisation stated that the government should take requisite action to facilitate, promote and protect the rights of pupils while under their care in schools.

TSC lawyer Allan Sitima said the commission had distributed a circular — No 3 of 2010 — in April 2010 in which it sent out a stern warning governing relations between teachers and pupils, mainly of the opposite sex.